One stop, no stop, two stop, Terry stop: reasonable suspicion and pseudoephedrine purchases by suspected methamphetamine manufacturers.

• Author: Goetz, Andrew C.

TABLE OF CONTENTS INTRODUCTION I. THE DOMESTIC MANUFACTURE OF METHAMPHETAMINE II. THE INTERPLAY BETWEEN OUTWARD INNOCENCE AND REASONABLE SUSPICION III. A FRAMEWORK FOR ANALYZING REASONABLE SUSPICION OF PSEUDOEPHEDRINE PURCHASES A. The Multiple-Purchasers Strategy B. The Multiple-Stores Strategy C. Hybrid Scenarios and Additional Precursors CONCLUSION "I can go to Wal-Mart and get everything I need to cook a batch of meth." (1)

INTRODUCTION

Cold medicine is not just for colds anymore. In the last decade, cold medicine has become the central ingredient in the domestic manufacture of methamphetamine, an extraordinarily dangerous drug that has exploded in popularity across the United States. (2) From its origins on the West Coast, methamphetamine has spread to the rest of the country, where users have started manufacturing the drug for themselves in makeshift laboratories. (3) The manufacturing process utilizes a variety of ingredients, all of which are readily available at any local drug store or supermarket. (4) Chief among these ingredients is pseudoephedrine, the active ingredient in many cold medicines. (5) In response, retailers, state legislatures, and the federal government have imposed purchasing restrictions on cold medicines containing pseudoephedrine. (6)

Law enforcement has also worked to combat the domestic manufacture of methamphetamine. Recognizing the central role of pseudoephedrine in the manufacturing process, law enforcement officials have begun monitoring drug stores and supermarkets for suspicious purchases of cold medicine. (7) Upon observing such a purchase, law enforcement officials often conduct an investigatory stop, also known as a Terry stop, of the purchaser or purchasers. (8) As a result, state and federal courts have been forced to address the central question in such encounters: when is a purchase of cold medicine suspicious enough to permit law enforcement to conduct an investigatory stop? Unsurprisingly, courts have reached a wide range of inconsistent results in analyzing such a fact-specific wrinkle in their search-and-seizure jurisprudence. (9)

This Note attempts to inject some clarity into courts' reasonable suspicion calculus for cold medicine purchases. It argues that the key factor in analyzing such purchases is whether the purchaser or purchasers appear to be circumventing pseudoephedfine purchasing restrictions in order to obtain inordinately large quantities of pseudoephedrine. Part I provides a general background on the domestic manufacture of methamphetamine in small, clandestine laboratories. Part II then examines the interplay between outward innocence and reasonable suspicion under the Supreme Court's Fourth Amendment jurisprudence. Finally, Part III establishes a framework for identifying purchasing strategies that methamphetamine manufacturers commonly use to circumvent pseudoephedrine purchasing restrictions. These types of pseudoephedrine purchases meet the threshold for reasonable suspicion, despite some courts' decisions to the contrary.

1. THE DOMESTIC MANUFACTURE OF METHAMPHETAMINE

   Although at least one-half of methamphetamine in the United States is smuggled into the country, (10) the remainder is produced domestically in small, clandestine laboratories, where users have discovered that they can manufacture their own methamphetamine simply and cheaply. (11) Manufacturers easily obtain all chemicals and equipment from retail stores, (12) and recipes are widely available on the internet. These laboratories currently use two methods to manufacture methamphetamine: (13) (1) the "Birch reduction method," also known as the "Nazi method," (14) and (2) the "red phosphorus method," or "red-P method." (15)

   Both the Birch reduction method and the red phosphorus method require either ephedrine or pseudoephedrine as an essential precursor: "Ephedrine and pseudoephedrine are to methamphetamine what flour is to bread--THE essential ingredient." (16) Until recently, ephedrine served as a decongestant and a weight-control product. (17) Because of ephedrine's adverse side effects, however, pseudoephedrine and phenylephrine have mostly replaced it as a decongestant, and the FDA has severely restricted its use as a weight-control product. (18) With the increasingly limited availability of ephedrine, methamphetamine manufacturers have turned to pseudoephedrine, the active ingredient in many common cold medicines. (19) Pseudoephedrine has become "methamphetamine's most important precursor," (20) with methamphetamine recipes sometimes calling for between 1000 and 1200 sixty-milligram tablets of cold medicine containing pseudoephedrine. (21) Smaller batches, obviously, require less pseudoephedrine. (22)

   The overwhelming majority of states have responded to pseudoephedrine's central role in manufacturing methamphetamine by passing laws that restrict the sale of pseudoephedrine products. (23) Oklahoma was the first state to restrict access to pseudoephedrine, and the results were dramatic: the first month the law was in force, Oklahoma experienced a forty-five percent reduction in the number of methamphetamine laboratories seized by law enforcement. (24) Oklahoma's law requires that pseudoephedrine products "be dispensed, sold, or distributed only by, or under the supervision of, a licensed pharmacist or a registered pharmacy technician." (25) Any person attempting to purchase pseudoephedrine products must produce photo identification and sign a log. (26) Recently, the Oklahoma legislature amended the law to implement a real-time electronic logbook to help retailers coordinate the monitoring of pseudoephedrine sales. (27) The law prohibits a person without a valid prescription from acquiring more than nine grams of pseudoephedrine--approximately three boxes of cold medicine containing ninety-six thirty-milligram tablets per box--within a thirty-day period. (28) Finally, Oklahoma makes "possession of a drug product containing more than nine (9) grams of ... pseudoephedrine ... a rebuttable presumption of the intent to use the product as a precursor to methamphetamine...." (29)

   Other states' restrictions vary considerably. (30) They usually contain a combination of the following: setting a limit on the quantity of pseudoephedrine that a retailer may sell to a customer within a specified time period; (31) requiring retailers to move pseudoephedrine products behind the pharmacy counter or within a locked case; (32) requiring retailers to monitor pseudoephedrine products visually or with electronic surveillance; (33) requiring pseudoephedrine purchasers to produce identification; (34) requiring retailers or purchasers to record pseudoephedrine purchases on a written or electronic log; (35) requiring retailers to report suspicious purchases to law enforcement; (36) and requiring retailers to report unusual thefts to law enforcement. (37) In addition, state and federal laws prohibit possession of pseudoephedrine with intent to manufacture methamphetamine. (38) Some states have even criminalized possession of more than a specified limit of pseudoephedrine, (39) and other states have made possession of more than a specified amount of pseudoephedrine prima facie evidence of intent to manufacture methamphetamine. (40) These restrictions sometimes exempt pseudoephedrine products not readily convertible to methamphetamine. (41) Finally, some states have responded to privacy concerns by explicitly prohibiting retailers from disclosing purchase logs to anyone except law enforcement. (42)

   Retailers have played a major role in monitoring pseudoephedrine purchases. In many communities, retailers coordinate with law enforcement and report suspicious purchases to law enforcement officials. (43) Recently, many retailers, including Walgreens, Target, and CVS, moved beyond voluntary restrictions on pseudoephedrine sales and placed pseudoephedrine products behind pharmacy counters--even in states where retailers were not required to do so. (44) Target is also developing an electronic log to help track purchases of pseudoephedrine. (45)

   In response to the success of the myriad state laws and retailer policies, the federal government has also begun to regulate pseudoephedrine sales nationwide. In early 2006, the President signed the Combat Methamphetamine Epidemic Act of 2005 ("CMEA") into law at the federal level. (46) Notably, the CMEA does not preempt state regulation of pseudoephedrine sales, leaving states free to maintain or enact more stringent restrictions. (47) As of September 30, 2006, the CMEA requires retailers to place pseudoephedrine products "such that customers do not have direct access to the product before the sale is made." (48) To purchase pseudoephedrine, a customer must provide photo identification and sign a written or electronic log. (49) Law enforcement officials have access to these logs, but the CMEA requires the attorney general to establish regulations protecting the privacy of individuals who sign them. (50) A store may only sell up to 3.6 grams of pseudoephedrine--slightly more than one ninety-six-pill box of cold medicine--per day to a given purchaser, regardless of the number of transactions. (51) The CMEA also prohibits customers from purchasing more than nine grams of pseudoephedrine within a thirty-day period. (52)

   Methamphetamine manufacturers thus face a number of restrictions on their ability to purchase pseudoephedrine. As a result, they have developed purchasing strategies to obtain the requisite amount of pseudoephedrine for manufacturing methamphetamine. Part III addresses these strategies in detail, but first, Part II briefly examines the Fourth Amendment's reasonable suspicion standard and its interplay with outward innocence.

2. THE INTERPLAY BETWEEN OUTWARD INNOCENCE AND REASONABLE SUSPICION

   In Terry v. Ohio, the Supreme Court relied upon the Fourth Amendment's prohibition on unreasonable searches and seizures (53) to develop the standard of...